We live in a litigious society. According to ZoomSafer, American law schools churn out 45,000 new lawyers every year, all of whom are looking for that big payday or a way to make a name for themselves.
According to Jose Luis Muñoz, labor and employment law attorney for Alaniz and Schraeder, LLP, employee accidents are expensive. Motor vehicle crashes cost businesses almost $60 billion per year. On-the-job highway crashes cost employers more than $25,500 per crash, more than $128,000 per injury, and more than $500,000 per fatality. Truck accidents, specifically, have fueled many lawyers’ careers.
“One key item companies must remember, as the owner or employer of the vehicle, you will be named in the lawsuit 100 percent of the time,” Muñoz noted. “Why is this? Because companies have what lawyers refer to as ‘deep pockets.’ ”
To prevail on a claim, a plaintiff must prove that the other driver was texting while driving, talking on a cell phone, or otherwise acting negligently before the accident. If successful, the plaintiff may be entitled to compensation for medical bills, time spent off work, property damage, and punitive damages.
According to Muñoz, there are two principal legal theories of negligence:
• Respondeat Superior, which states that an employer is responsible for the negligent acts of employees while they are acting in the scope of employment.
• Direct Negligence, which states that an employer is responsible for its own negligence in hiring, supervising, and entrusting a vehicle to an unqualified employee.
What about a company’s insurance policy? According to Muñoz, rule No. 1 of liability insurance policies is to read the policy’s exclusions. Don’t just take the insurance agent’s word for it.
“Many standard commercial general liability policies exclude punitive damages. And, even if covered, punitive damages can often exceed policy limits. Many policies also exclude negligent entrustment coverage,” Muñoz said.
Negligent entrustment occurs when a fleet manager permits a driver to operate a vehicle, the driver is found to be incompetent, the fleet manager or company knew or should have known about the incompetence, and the driver’s negligence caused an accident.
A driver is considered incompetent if any of the following are true:
■ Not qualified to drive a vehicle safely at the time he or she was hired.
■ Disqualified under DOT or any state regulations.
■ History of accidents and traffic violations.
■ Lacked skills for the type of vehicle or driving involved.
■ Engaged in risky behavior, such as cell-phone use while driving.
Whether the driver was operating a company or personal vehicle, and whether he or she was using a personal or company cell phone is immaterial for the purpose of liability. If he or she was acting in the scope of employment, the fleet manager is liable.
“This is where a plaintiff’s lawyers earn their money,” Muñoz said. “First, the lawyer will identify something in the driver’s past or current performance that renders them incompetent, such as cell-phone use. Second, they will try to show why the fleet manager should have known about it, and should therefore also be liable.”
The plaintiff’s attorney will always compare the fleet manager to the “standard bearers” in the industry.
“By comparing a fleet manager to the very best, lawyers can make him or her look the worst,” Muñoz noted. “Lawyers will say you ‘should know’ about anything required by Federal Motor Carrier Safety Regulations (FMCSR), regardless of whether this applies to a company’s specific fleet type — it is the first thing courts will look at to determine whether a driver was incompetent.”
Workers’ Compensation Trend
As evidenced by the recent federal ban on hand-held cell-phone use by commercial motor vehicle (CMV) drivers, the national trend is to prohibit or restrict the use of cell phones in motor vehicles.
“This trend could make the use of a cell phone while driving a deviation from employment,” Muñoz said. “Accidents involving cell-phone use while driving at work would then likely be considered a deviation from employment and excluded from workers’ compensation coverage.”
There are three risk factors that generate liability, according to Muñoz:
1. The Driver. Fleet managers should ensure their company has a formal application process, which includes a written job description.
“Require a comprehensive employment application and request permission to perform a criminal background check. Have applying drivers list all prior driving jobs and the employer for each,” he said.
Within 30 days of hire, establish driver fitness. Check references, obtain an MVR report, verify physical ability, and perform a road test to determine ability. Set minimum standards for driving requirements.
Establish a driver training program and require regular attendance at vehicle safety and operating classes.
Perform an annual review to determine whether a driver is still qualified. While not mandatory, consider maintaining a driver qualification file for each driver. Keep every written document and maintain this file for at least three years after the employment relationship ends.
2. The Vehicle. Ensure vehicle purchases are made responsibly. Always buy vehicles from a reputable vendor, insist on a full vehicle crash-test history if it is used, and retain all purchasing documents.
Ensure proper vehicle maintenance, always use certified automotive repair personnel, and don’t keep a vehicle past its normal “shelf life” or lifecycle.
Keep a vehicle maintenance file for every unit. Keep all written documents, and maintain this file for at least three years after a vehicle is retired from service.
3. The Circumstances of the Accident. Do everything to require and encourage drivers to operate vehicles safely. Always have a procedure in place to conduct your own post-accident investigation. A company investigator should visit the crash scene to take photos, without interfering with any ongoing police activity.
“Some accidents are the driver’s fault, but others are not. After you investigate the accident, take action against the driver if he or she was at fault. Over time, this builds a history of zero-tolerance for incompetent drivers,” Muñoz said.
Maintain a file for every vehicle accident, investigation, and disciplinary action. Keep every written document and maintain this file for at least three years after the incident.
Muñoz noted that personnel policies are key. “Employers must implement policies specifically addressing the dangers of cellular phone use while driving,” he said. “Approaches will vary to fit individual needs.”
Companies also need to have a policy on texting and cell-phone use. Hand-held cell-phone use while driving is illegal in 10 states and Washington, D.C. Federal regulations prohibit commercial drivers from texting while driving, which is now classified as a “serious traffic violation” for purposes of CDL eligibility.
“A number of companies now have services that block employees from using their cell phone while in their company vehicle, except for emergency calls,” Muñoz noted. “Not only do these services reduce the likelihood of an accident, but, the fact that a company paid for this service is great evidence to refute allegations of negligent entrustment.”
During the discovery phase of a lawsuit, the plaintiff’s lawyer will immediately begin mining records looking for a “smoking gun” or evidence of a fleet manager’s inaction.
“First, they will request the driver qualification files, assuming that they do exist,” Muñoz said. “Then they will check for any holes or ‘red flags’ that should have been known or noticed by fleet managers.” Next, they will ask for your employee handbook, driver’s guide, and all company policies for hiring, training, and retaining drivers. These will be reviewed to see if the company had sound policies in place, and will be audited by an industry expert.
With technology and the use of it, data mining can be used to reveal harmful e-mails or reports in a matter of seconds. Be sure to keep accurate records and comply with your company’s safety policies. FF
This article is based on a portion of a ZoomSafer webinar, presented by Jose Luis Muñoz, labor and employment law attorney at Alaniz & Schraeder, LLP. He can be reached at [email protected]